Area of Law: Consumer Law
Answer # 808
Buying defective goodsRegion: Ontario Answer # 808
If you purchase a defective product, you are often entitled to compensation from either the store that sold you the product, or from the manufacturer that designed and made the product.
Generally, a consumer who purchases goods is entitled to sue for damages for breach of the contract if the quality, fitness, or performance of the product does not match the express or implied terms of sale. Sometimes, the implied terms can be what are reasonable or normally expected in trade practice or common use.
Compensation under a warranty
First, you should check if the product came with a warranty or guarantee either from the store or the manufacturer. If it did, you may be entitled to a refund or some other form of compensation by contacting the store or the manufacturer and explaining your problem.
Does a business have to accept the return of a product? Can I get my money back?
Whether a business has to accept the return of a product and give you your money back depends on what is wrong with the product. If the goods you purchased do not work as advertised, are defective in a way that you did not know about at the time of purchase or what was delivered was not what you ordered, you likely do have a right to a refund or, at least, a replacement.
If the defect is a breach of a “condition” or fundamental term of the sale, you can choose to treat it as an event that voids or nullifies the contract. You can return or refuse the defective product and the seller should return your money. If the defect is a breach of a warranty or a misrepresentation of what was promised, the seller is only obligated to either repair or replace the product.
Problems in returning products can arise if the seller advertises something “as is,” sells on the basis of “no returns/final sale” or points out defects before you purchase. In that case, you are usually obliged to inspect the goods before purchase and decide for yourself if it’s what you want.
If, however, you simply don’t want the product anymore, don’t like the colour or you saw it for a better price elsewhere, you will have to rely on the business’ refund and return policy.
Sellers are free to set the conditions of sale so long as they make their policy clear at the cash register or through signage in the store. One store can require returns within 10 days, another can allow 30 days and yet another can charge you a “restocking” fee for returns of otherwise good merchandise.
Some retailers follow the dubious practice of stating their return policy on the back of the sales slip (which does you no good after you’ve bought), so it’s always wise to ask about returns and refunds before you buy.
Compensation under the Sale of Goods Act
If you discover the product did not come with a warranty or if you are told by the seller or the manufacturer that the defect you have experienced is not covered by the warranty, you may still be entitled to compensation. Under the Sale of Goods Act, stores have three legal obligations to their customers, regardless of whether the product came with a specific warranty or guarantee.
First, they are legally required to sell products that are suitably fit for their purpose. Essentially, the product you purchased must function in the way that it is supposed to function.
Second, if you bought the product based on a description, such as by catalogue, or if you bought the product based on a sample, such as buying carpet, the goods you receive must correspond to that description or sample.
Third, if the goods are bought by description, such as by catalogue, they must be fit to be sold. The Sale of Goods Act applies to every consumer sale of goods, even if a seller told you before you purchased the item that the Sale of Goods Act would not apply, or if you signed a contract that said that the Act did not apply.
If a seller violates any of these obligations, you are entitled to cancel the contract and receive a refund. If the store is unwilling to refund your money or otherwise compensate you, or if they insist that you contact the manufacturer, tell them that under the Sale of Goods Act, they are required to handle your complaint.
When to contact the manufacturer
Although the store where the product was purchased should be your main focus, there are a few instances where you may want to contact the manufacturer. First, you may want to contact the manufacturer simply to warn them about the defective product. Second, if a store is completely unwilling to handle your complaint, you may have to call the manufacturer and explain your problem to their Customer Service department. Third, a manufacturer will be your only avenue for compensation if you did not personally purchase the product. If this is the case, the store where the product was purchased does not have any obligations to you under the Sale of Goods Act.
Compensation in a negligence claim
If you do not get satisfaction by this stage, your only option may be a civil lawsuit claiming negligence in the manufacture of the good. If the damages are small enough, you may be able to pursue this in Small Claims Court without a lawyer. You will have to prove there was a failure to exercise reasonable care in the design or manufacture of or instructions for the product that resulted in injury to a foreseeable user or your property. If there was an unintended defect in the way the product was made, a court will still likely hold the manufacturer responsible since its processes or employees should have caught the error.
You may also be able to sue when a retailer, distributor, or manufacturer recklessly or carelessly makes false statements about the safety or use of the product. This is called a negligent misrepresentation. The court will look closely to see if you relied on that statement and that it caused you damage.
Defective products and recalls
A product recall occurs when there are safety concerns due to a product being either defective or potentially harmful. A recall requests the return of the product to the manufacturer or seller, and it may be removed from the market altogether, or, modified or corrected. There are a wide range of products that may be subject to defects or product recalls, including:
- baby stroller, cribs and playpens
- children’s toys
- medical devices and equipment
- prescription drugs
- automobiles, automobile parts, truck tires
- space heaters
- other household items
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